Constitution “Defeated”

October 30, 2009Contrarian 3 Comments »

In a debate on another blog (the Spokesman-Review’s “Matter of Opinion” blog), one commenter wrote,

“No amount of Libertarian Ayn Randian rhetoric about the long defeated concept of “enumerated powers” as why this country can’t have universal health care is going to convince any intelligent citizens.”

I asked how the doctrine of enumerated powers had been “defeated,” to which he responded,

“By SCOTUS ruling. Step into the current century, Luddite.”

Well, it’s not terribly clear what “defeating” a constitutional provision requires, or whether the Supreme Court has a power to “defeat” any of them, given that word is not mentioned in the Constitution. But per common understanding, to “defeat” someone or something implies rendering that thing or person inoperative or impotent.  The US Constitution does provide a means for achieving that result with respect to its various provisions — the amendment process. Of course, there has been no amendment repealing the enumerated powers doctrine. But this poster clearly thinks the Supreme Court is empowered to repeal it on its own.

So I asked him which other provisions of the Constitution he believed the Court possessed a power to “defeat.” I posed the following fictional ruling for his (and your) consideration. Comments are welcome.


The petitioners in the present case are charged with violations of the Defense of Democracy and Orderly Debate Act of 2012 (DDODA), by distributing leaflets, posting essays and comments on various Internet sites, and organizing rallies in opposition to the Human Rights Enforcement Act (HREA) then under deliberation in Congress. Defendants moved the trial court to dismiss the charges on grounds that the First Amendment protects their right to free speech and peaceable assembly. That court denied the motion; the 9th Circuit Court of Appeals upheld the denial.

The Defense of Democracy and Orderly Debate Act attempts to ensure that public debate of enacted or proposed legislation proceeds in an orderly, civil manner, and does not thwart or hamper the ability of the government to enact or enforce legislation which it has reason to believe reflects the will of the public. The government contends that the actions of the petitioners complained of in the indictment provoked public opposition to the HREA and to the government generally, interfered with Congressional consideration of the bill and delayed action thereon, and has inspired widespread defiance of several of the Act’s provisions since its passage. As authorized by the DDODA, the government issued cease-and-desist orders to the defendants herein and to several other persons, ordering them to halt distribution of the the objectionable leaflets, remove specific postings from various Internet servers, and barred them from gathering in groups larger than two persons “for the purpose of inciting public sentiment hostile to the bills herein referenced.” The orders also advised the recipients that continued violations of DDODA would result in fines of $5000, or imprisonment for 5 years, or both, for each specific count in violation. While many of the enjoinees complied with those orders, the petitioners publicly refused, and per their own admission not only continued but “redoubled” their violations of the order.

We have held in a number of previous cases that the provisions of the Constitution are subject to a balancing test. We have also held that acts of Congress must be presumed to be constitutional if they are reasonably related to one or more of the powers granted to Congress by the Constitution, and have a “rational basis:” if the record includes evidence and findings that the measures proposed are likely to accomplish the Constitutional purposes at which they aim.

Clearly, a measure to expand and enforce human rights, such as the HREA, which requires all landlords, merchants, providers of professional services, self-employed artists and craftsmen, and others, to adopt means-tested pricing for their goods and services in accordance with a discount schedule prepared annually by the Office of Management and Budget, and which forbids any provider of an “essential good or service” as defined in the Act to refuse to provide such “essential good or service” to any person on grounds of inability to pay, is reasonably related to the Congress’s Constitutional power to provide for the general welfare.

In addition to legislation reasonably related to the the powers granted to Congress, the Constitition also authorizes Congress to enact any measure “necessary and proper for carrying into execution the foregoing powers.” We hold that the DDODA, which aims in part to prevent delays and deter obstructions to enactment of Constitutional legislation which can result from concerted, widespread, intemperate (and often disorderly and even violent) public opposition thereto, which opposition can also undermine compliance with the legislation once it has passed and even arouse public emnity toward the government in general, is a necessary and proper measure for assuring that the legislation in question can be enacted and enforced.

This Court does not take petitioners’ invocation of the First Amendment lightly. We have always held that the rights of free speech, press, religion, and assembly are to be accorded the highest level of judicial protection, and that legislation credibly alleged to infringe those rights requires the most diligent scrutiny by this Court.

No one can argue, however, that protection of First Amendment rights is the only obligation of government. The First Amendment cannot be construed so broadly (or so narrowly, depending upon one’s point of view), that it frustrates other important functions of government. The aims of the First Amendment must therefore be balanced in each case against those other important governmental aims. One of those latter is surely to provide for the general welfare; another is to enact the wishes of the public in law. We know of no way to weigh those competing objectives except by measuring their relative importance to the public. The government has placed evidence in the record that the HREA enjoys the support of between 60 and 75 percent of registered voters, depending upon the poll and the time it was conducted. Petitioners do not challenge those poll results.

The First Amendment’s phrase “Congress shall make no law abridging the freedom of speech” can only be understood to mean, “Congress shall make no law unreasonably abridging the freedom of speech.” We hold today that a law necessary and proper to the attainment of a permissible governmental objective, which objective clearly reflects the desires of a majority of the public, cannot be deemed unreasonable.

The judgments of the courts below are AFFIRMED.

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3 Responses to this entry

  • The Chairman of my own Self Says:

    How great a tactic is it to say your scenario is BS so I’m not going to dignify it with a response. I wonder if your antagonist thinks it can’t or won’t happen? Or if he just agrees with the outcome?

  • The Chairman of my own Self Says:

    I need help coining a term. The folks that want some kind of government run health care plan probably also believe that it was unbridled capitalism that lead to last years economic downturn. The true details of what happened don’t need to be discussed here but can we pigeon hole free market deniers like others pigeon hole global warming deniers?

  • Greg Says:


    Just found your blog. Since I live in Spokane I’m finding it particularly interesting.

    I would find this post to be funny except that I think that a very significant part of this country would have no problems with that fictional ruling being real.

    It’s interesting that anyone thinks that SCOTUS would have any power to defeat the constitution. That the various branches of our government choose to ignore any part of the Constitution at any given time is hardly a defeat of it.